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B-144183, OCT. 20, 1960

B-144183 Oct 20, 1960
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M.D.: REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 24. YOUR CLAIM WAS DISALLOWED BY A SETTLEMENT OF OUR CLAIMS DIVISION DATED SEPTEMBER 15. YOUR LETTER WILL BE REGARDED AS A REQUEST FOR A REVIEW OF THAT SETTLEMENT. THE DEPARTMENT OF THE ARMY HAS REPORTED THAT YOU WERE COMMISSIONED AS A FIRST LIEUTENANT. THAT YOU WERE SERVING AS A CAPTAIN. WHEN YOU WERE CERTIFIED FOR PAYMENT OF RETIREMENT PAY IN 1946 UNDER THE PROVISIONS OF SECTION 5 OF THE ACT OF APRIL 3. 61 STAT. 239) WHICH IS IN FAVOR OF "ANY RESERVE" AND IS APPLICABLE TO "PAY AND ALLOWANCES AS A RESERVE. IT WAS HELD THAT: "* * * THE PAY AND ALLOWANCES MENTIONED IN THE ACT OF JULY 1. ARE THOSE WHICH ARE PAYABLE TO A MEMBER OF A RESERVE COMPONENT IN HIS CAPACITY AS A RESERVIST AND THAT THEY MUST BEAR SOME RELATIONSHIP TO ACTIVE DUTY PERFORMED IN SUCH CAPACITY.

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B-144183, OCT. 20, 1960

TO MARCUS A. PARVEY, M.D.:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 24, 1960, CONCERNING YOUR CLAIM FOR RETIRED PAY WITHHELD FROM YOU DURING THE PERIOD SEPTEMBER 14, 1949, THROUGH NOVEMBER 30, 1959, UNDER THE DUAL COMPENSATION RESTRICTIONS OF SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, AS AMENDED, 5 U.S.C. 59A. YOUR CLAIM WAS DISALLOWED BY A SETTLEMENT OF OUR CLAIMS DIVISION DATED SEPTEMBER 15, 1960, AND YOUR LETTER WILL BE REGARDED AS A REQUEST FOR A REVIEW OF THAT SETTLEMENT.

THE DEPARTMENT OF THE ARMY HAS REPORTED THAT YOU WERE COMMISSIONED AS A FIRST LIEUTENANT, OFFICERS' RESERVE CORPS, ON SEPTEMBER 18, 1939, AND AS A CAPTAIN IN THAT ORGANIZATION ON MAY 3, 1948, AND THAT YOU WERE SERVING AS A CAPTAIN, ARMY OF THE UNITED STATES, WHEN YOU WERE CERTIFIED FOR PAYMENT OF RETIREMENT PAY IN 1946 UNDER THE PROVISIONS OF SECTION 5 OF THE ACT OF APRIL 3, 1939, AS AMENDED, 10 U.S.C. 456 (1946 ED.).

THE EXEMPTION FROM THE DUAL COMPENSATION RESTRICTIONS OF THE ECONOMY ACT UNDER SECTION 29 (C) OF THE ACT OF AUGUST 10, 1956, 5 U.S.C. 30R (C) (DERIVED FROM SECTION 1 (B) OF THE ACT OF JULY 1, 1947, 61 STAT. 239) WHICH IS IN FAVOR OF "ANY RESERVE" AND IS APPLICABLE TO "PAY AND ALLOWANCES AS A RESERVE," REQUIRES MORE THAN A SHOWING OF AN INACTIVE DUTY STATUS IN A RESERVE COMPONENT OF THE ARMED FORCES. IN OUR DECISION OF OCTOBER 9, 1959, B-140379, 39 COMP. GEN. 280, IT WAS HELD THAT:

"* * * THE PAY AND ALLOWANCES MENTIONED IN THE ACT OF JULY 1, 1947, AS AMENDED, ARE THOSE WHICH ARE PAYABLE TO A MEMBER OF A RESERVE COMPONENT IN HIS CAPACITY AS A RESERVIST AND THAT THEY MUST BEAR SOME RELATIONSHIP TO ACTIVE DUTY PERFORMED IN SUCH CAPACITY. MERE MEMBERSHIP IN THE OFFICERS RESERVE CORPS * * * IS NOT IN ITSELF A SUFFICIENT BASIS FOR EXEMPTION UNDER THE ACT OF JULY 1, 1947, AS AMENDED, OR UNDER THE STATUTORY PROVISIONS CURRENTLY IN EFFECT, WHICH ARE CONTAINED IN 5 U.S.C. 30R (C) (1958 ED.). SEE B-134102, DECEMBER 10, 1957, AND 38 COMP. GEN. 839. THE DECISION RENDERED ON JANUARY 14, 1959, BY THE COURT OF CLAIMS IN THE CASE OF BOWMAN ET AL. V. UNITED STATES, C.CLS. NO. 108-58, IN FAVOR OF NATHAN REED WARTHEN, PLAINTIFF NO. 5, THE COURT STATED (REFERRING TO ITS EARLIER DECISION IN SARLES V. UNITED STATES, C.CLS. NO. 353-56 DECIDED MARCH 5, 1958) THAT THE 1947 ACT, PROPERLY INTERPRETED, COVERS ANY PERSON WHO HAS BECOME ENTITLED TO RETIRED PAY "BY REASON OF SERVICE IN A RESERVE COMPONENT.'"

AT THE TIME YOU WERE CERTIFIED FOR RETIREMENT PAY IN 1946, YOU WERE SERVING ON ACTIVE DUTY AS AN OFFICER OF THE ARMY OF THE UNITED STATES WITHOUT COMPONENT, AND THE RECORDS SHOW THAT YOU SERVED IN THAT YOU EVER SERVED ON ACTIVE DUTY UNDER YOUR COMMISSION IN THE OFFICERS' RESERVE CORPS AFTER YOU ACCEPTED A COMMISSION AS CAPTAIN IN THE ARMY OF THE UNITED STATES ON NOVEMBER 17, 1942. HENCE, IT APPEARS THAT THE RETIRED PAY TO WHICH YOU HAVE BEEN ENTITLED SINCE 1946 IS NOT ,PAY AND ALLOWANCES AS A RESERVE" WITHIN THE DUAL COMPENSATION PROVISIONS OF SECTION 29 (C) OF THE 1956 LAW.

IT IS OUR VIEW THAT THE DECISION OF THE COURT OF CLAIMS IN THE CASE OF PALMER V. UNITED STATES, CT.CL. NO. 356-58, DECIDED JANUARY 20, 1960, IS TANTAMOUNT TO A CONCLUSION, AT LEAST IN THE CIRCUMSTANCES IN THAT CASE, THAT THE ACT OF APRIL 13, 1939, THE LAW UNDER WHICH YOU WERE CERTIFIED FOR RETIREMENT PAY, IS NOT A LAW RELATING TO THE THE RESERVE COMPONENTS OF THE ARMED FORCES WITHIN THE MEANING OF THE RULE IN THE TANNER CASE, 129 CT.CL. 792. THE DECISION IN THE PALMER CASE CREATES DOUBT AS TO THE PROPRIETY OF PAYING RETIRED PAY UNDER THE 1939 ACT, AS AMENDED (NOW CODIFIED IN 10 U.S.C. 3687 AND 8687), TO RESERVISTS AND ARMY OF THE UNITED STATES PERSONNEL, WHERE SUCH PERSONS ARE OTHERWISE WITHIN THE DUAL COMPENSATION RESTRICTIONS OF SECTION 212 OF THE ECONOMY ACT. IN OUR DECISION DATED AUGUST 26, 1960, B-123382, TO THE SECRETARY OF DEFENSE, WE CONCLUDED THAT, UNTIL SUCH TIME AS THE POSITION OF THE COURT IS CLARIFIED, FURTHER PAYMENTS OF THIS TYPE SHOULD NOT BE MADE UNDER THOSE STATUTORY PROVISIONS. HENCE, EVEN IF IT COULD BE ESTABLISHED THAT YOUR RETIRED PAY ACCRUED AS A RESULT OF RESERVE SERVICE, PAYMENT OF THE RETIRED PAY CLAIMED WOULD BE BARRED BY THE DECISION OF AUGUST 26, 1960.

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